April 12, 1937 – The Supreme Court Decides NLRB v. Jones & Laughlin Steel

In NLRB v Jones & Laughlin Steel Corp, 301 U.S. 1 (1937), the U.S. Supreme Court upheld the National Labor Relations Act of 1935, commonly referred to as the Wagner Act. Jones & Laughlin Steel Co. was at that time the country’s fourth largest steel producer. The J. & L. dispute involved ten steelworkers who had been fired from one of the company’s mills for trying to organize a union.

The question before the Court was whether labor-management disputes were directly related to the flow of interstate commerce and so could be regulated by the national government.

Congress claimed authority to pass the Wagner Act under its power to regulate interstate commerce, enumerated in Article I of the Constitution. Jones & Laughlin challenged the law, arguing that the Act was an attempt to regulate all industry, “thus invading the reserved powers of the States over their local concerns.” This went beyond the commerce power of Congress, they asserted. As Chief Justice Charles Evans Hughes wrote about the position of Jones & Laughlin, the company argued “the Act is not a true regulation of such commerce or of matters which directly affect it, but, on the contrary, has the fundamental object of placing under the compulsory supervision of the federal government all industrial labor relations within the nation.”

Charles Evans Hughes, Chief Justice of the U.S. Supreme Court

In his opinion, Justice Hughes observed first that “[t]he distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal form of government.” The Court held that “[a]lthough activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential, or appropriate, to protect that commerce from burdens and obstructions, Congress has the power to exercise that control.”

In the instant case, the Court noted that “[t]he relation to interstate commerce of the manufacturing enterprise . . . was such that a stoppage of its operations by industrial strife would have an immediate, direct and paralyzing effect upon interstate commerce. Therefore, Congress had constitutional authority, for the protection of interstate commerce, to safeguard the right of the employees in the manufacturing plant to self-organization and free choice of their representatives for collective bargaining.”

Specifically, The National Labor Relations Act of July 5, 1935 empowered the National Labor Relations Board to prevent any person from engaging in unfair labor practices “affecting commerce.” According to Sec. 7. [§ 157]:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].”

Thus the Court held in part that “The Act imposes upon the employer the duty of conferring and negotiating with the authorized representatives of the employees for the purpose of settling a labor dispute. . . . .”

Moreover, it found that “The provision of the National Labor Relations Act, § 10(c), authorizing the Board to require the reinstatement of employees found to have been discharged because of their union activity or for the purpose of discouraging membership in the union, is valid.”

The Oyez website points out that Justice Hughes carefully limited the opinion to exclude situations in which an activity had such an inconsequential or remote impact on interstate commerce that it exclusively impacted local matters. 

In his dissent, however, Justice James C. McReynolds cited the lack of actual demonstrated effect on interstate commerce and questioned Congress’s enhanced power under the Commerce Clause. 

Chris Schmidt, writing for the Chicago-Kent College of Law SCOTUS blog, maintains:

The decision was a landmark ruling on the meaning of the Commerce Clause. Its reasoning granted far more authority to Congress to regulate economic relations than the Court had previously allowed. It was also a major victory for industrial and factory workers across the country. The Wagner Act helped usher in a new era of labor relations, one in which union power, backed by the authority of the federal government, entered into negotiations with industry on far more equal footing than before.”

But unions have been taking blows from other directions, most recently with the Supreme Court decision on June 27, 2018 in the case Janus v. AFSCME (No. 16-1466). By a 5-to-4 vote, with the more conservative justices in the majority, the court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining. The court overruled 41 years of precedent in deciding that requiring employees to pay fees violates their First Amendment rights.

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April 8, 1913 – Seventeenth Amendment Wins Approval of Required Three-Fourths of State Legislatures

Before the passage of this amendment, U.S. senators were selected by state legislatures as directed by Article I, Section 3 of the Constitution, which holds that “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”

A number of problems arose from this method, including political wrangles that led to seats going empty for long periods. Support gradually increased for the direct election of senators by the voters.

The first change came in 1866, when Congress passed a law regulating how and when senators would be elected in each state. But it did not solve the problem entirely. As the Senate Historical Office observes:

Intimidation and bribery marked some of the states’ selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906. In addition, forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in seating senators. In 1899, problems in electing a senator in Delaware were so acute that the state legislature did not send a senator to Washington for four years.”

Each year from 1893 to 1902, they report, a constitutional amendment to elect senators by popular vote was proposed in Congress, but the Senate fiercely resisted change.

In the early 1900s, states started to initiate changes on their own. Momentum for reform on the national level increased. William Randolph Hearst got into the game, championing the cause of direct election with muckraking articles and strong advocacy of reform. The Senate Historical Office relates what happened next:

Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on senators, portraying them as pawns of industrialists and financiers. The pieces became a series titled ‘The Treason of the Senate,’ which appeared in several monthly issues of the magazine in 1906. These articles galvanized the public into maintaining pressure on the Senate for reform.”

By 1912, as many as twenty-nine states elected senators either as nominees of their party’s primary or in a general election. But a constitutional amendment was still required for a nationwide direct election process.

In 1911, Senator Joseph Bristow from Kansas offered a resolution proposing a constitutional amendment, and gained support from others who had come to the Senate via direct election. After the Senate passed the amendment, it went to the House, where it was finally approved in the summer of 1912 and sent to the states for ratification.

Connecticut’s approval gave the Seventeenth Amendment the required three-fourths majority, and it was added to the Constitution on this date in 1913. It was declared part of the Constitution, the 17th Amendment, on May 31 by Secretary of State William Jennings Bryan.

The following year marked the first time all senatorial elections were held by popular vote.

The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, it allows the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.

March 30, 1870 – Ulysses S. Grant on the Passage of the Fifteenth Amendment

President Grant was a champion of black rights; indeed, Frederick Douglass himself, who knew both Lincoln and Grant, thought more of Grant in some ways, saying of Grant after his presidential term:

To him more than any other man the Negro owes his enfranchisement and the Indian a humane policy. In the matter of the protection of the freedman from violence his moral courage surpassed that of his party; hence his place as its head was given to timid men, and the country was allowed to drift, instead of stemming the current with stalwart arms.”

The Fifteenth Amendment to the Constitution granted blacks, now free from slavery, the right to vote, declaring that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” It was passed by the House of Representatives on February 25, 1869, and the Senate on February 26, 1869. It was ratified on February 3, 1870.

President Ulysses S. Grant

Grant was so pleased with its passage that he issued a special message to Congress, beginning by observing that “It is unusual to notify the two Houses of Congress by message of the promulgation, by proclamation of the Secretary of State, of the ratification of a constitutional amendment.” But he felt the momentous occasion merited special notice:

In view, however, of the vast importance of the fifteenth amendment to the Constitution, this day declared a part of that revered instrument, I deem a departure from the usual custom justifiable. A measure which makes at once 4,000,000 people voters who were heretofore declared by the highest tribunal in the land not citizens of the United States, nor eligible to become so (with the assertion that ‘at the time of the Declaration of Independence the opinion was fixed and universal in the civilized portion of the white race, regarded as an axiom in morals as well as in politics, that black men had no rights which the white man was bound to respect’), is indeed a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.”

He concluded with a plea that continues to have urgency today:

I would therefore call upon Congress to take all the means within their constitutional powers to promote and encourage popular education throughout the country, and upon the people everywhere to see to it that all who possess and exercise political rights shall have the opportunity to acquire the knowledge which will make their share in the Government a blessing and not a danger. By such means only can the benefits contemplated by this amendment to the Constitution be secured.”

You can read the entire text of his message here.

March 26, 2015 Great Britain’s Repeal of Royal Marriages Act of 1772 Came Into Effect

The Royal Marriages Act 1772 (772 CHAPTER 11 12 Geo 3, repealed by the Succession to the Crown Act 2013, was an act of the Parliament of Great Britain enumerating the conditions under which members of the British Royal Family could contract a valid marriage. The purpose of the law was to guard against marriages that could diminish the status of the royal house. More specifically, the act was proposed by George III after the marriages of his brothers. In 1771, Prince Henry, Duke of Cumberland and Strathearnhad married the commoner Anne Horton. Then in 1773 the King learned that another brother, Prince William Henry, Duke of Gloucester and Edinburgh, had in 1766 secretly married Maria, the illegitimate daughter of Sir Edward Walpole and the widow of the 2nd Earl Waldegrave. Both alliances were considered highly unsuitable by the King.

King George III

The 1772 Act said that no descendant of King George II, male or female, other than the issue of princesses who had married or might thereafter marry “into foreign families,” could marry without the consent of the reigning monarch, “signified under the great seal and declared in council.” That consent was to be set out in the register of the marriage, and entered in the books of the Privy Council. Any marriage contracted without the consent of the monarch was to be null and void.

However, any member of the Royal Family over the age of 25 who had been refused the sovereign’s consent could marry one year after giving notice to the Privy Council of their intention so to marry, unless both houses of Parliament expressly declared their disapproval. There is, however, no instance in which the sovereign’s formal consent in Council was refused. (There were other informal ways to discourage marriages considered to be unsuitable.)

The Act further made it a crime to perform or participate in an illegal marriage of any member of the Royal Family. (This particular provision was repealed by the Criminal Law Act 1967.)

Edward VIII abdicated the throne in order to marry Wallis Simpson, twice divorced

A big change came about when the Church of England revised its policy on divorce and remarriage as a part of the General Synod in 2002, declaring:

The Church of England teaches that marriage is for life. It also recognizes that some marriages sadly do fail and, if this should happen, it seeks to be available for all involved. The Church accepts that, in exceptional circumstances, a divorced person may marry again in church during the lifetime of a former spouse.”

This change helped facilitate the repeal of the entire Marriages Act by Parliament in 2013. The Succession to the Crown Act 2013 repealed the Royal Marriages Act 1772. But all the countries in which the Queen is head of state had to pass necessary legislation before it took effect. This had already taken place pursuant to “The Perth Agreement,” an agreement made by the prime ministers of the 16 Commonwealth realms during the biennial Commonwealth Heads of Government Meeting in October, 2011 in Perth, Australia.

The agreement replaced male-preference primogeniture – under which male descendants take precedence over females in the line of succession – with absolute primogeniture; ended the disqualification of those married to Roman Catholics (a provision of the Act of Settlement of 1701) ; and limited the number of individuals in line to the throne requiring permission from the sovereign to marry to six. The ban on Catholics and other non-Protestants becoming sovereign and the requirement for the sovereign to be in communion with the Church of England remained in place.

Princess Margaret was “discouraged” from marrying the divorced Peter Townsend

By December 2012, all the realm governments had agreed to implement the proposals.

According to the BBC, the changes to the rules of succession were rushed through Parliament ahead of the birth of Prince George in 2013. The more limited provisions of 2013 Act included the following:

(1) A person who (when the person marries) is one of the 6 persons next in the line of succession to the Crown must obtain the consent of Her Majesty before marrying.

(2) Where any such consent has been obtained, it must be—
(a) signified under the Great Seal of the United Kingdom,
(b) declared in Council, and
(c) recorded in the books of the Privy Council.

(3) The effect of a person’s failure to comply with subsection (1) is that the person and the person’s descendants from the marriage are disqualified from succeeding to the Crown.

(4) The Royal Marriages Act 1772 (which provides that, subject to certain exceptions, a descendant of King George II may marry only with the consent of the Sovereign) is repealed.

(5) A void marriage under that Act is to be treated as never having been void if—
(a) neither party to the marriage was one of the 6 persons next in the line of succession to the Crown at the time of the marriage,
(b) no consent was sought under section 1 of that Act, or notice given under section 2 of that Act, in respect of the marriage,
(c) in all the circumstances it was reasonable for the person concerned not to have been aware at the time of the marriage that the Act applied to it, and
(d) no person acted, before the coming into force of this section, on the basis that the marriage was void.

(6) Subsection (5) applies for all purposes except those relating to the succession to the Crown.

Six realms in addition to the UK legislated for the changes: Australia, Barbados, Canada, the Grenadines, New Zealand, St Kitts and Nevis and St Vincent.

Nine others concluded that the legislation was not necessary: Antigua and Barbuda, Bahamas, Belize, Grenada, Jamaica, Papua New Guinea, St Lucia, Solomon Islands and Tuvalu.

You can find a history and recapitulation of Royal Succession Bills and Acts here.

Prince Harry was still required by the Succession to the Crown Act 2013 to seek permission from the Queen in order to marry. Harry and Meghan’s consent to marry was officially approved by his grandmother the Queen on March 14, 2018.

March 22, 1765 – British Parliament Passes the Stamp Act, Imposing a New Tax on American Colonies

In the late 1700’s, Britain made the ultimately fatal mistake of not only trying to police the American colonists against their worser angels, but also assessing them taxes for the effort. The fact was that Britain had a lot of expenses and irritations associated with her American colonies.

In order to secure the northern border of America, Britain, joined by colonials, had fought the French and Indian War (1756-63) and procured Canada from the French, but it was a costly campaign. Moreover, after the war, the British permitted the French “Papists” to retain their property, thus “cheating” the Americans of the rich plunder anticipated at war’s end.

Map showing British territorial gains following the Treaty of Paris in pink, and Spanish territorial gains after the Treaty of Fontainebleau in yellow

Afterwards, Britain attempted to enforce compliance with treaties made with Native Americans by stationing troops in North America, and they forbade colonists from moving west of the Appalachians. This latter policy in particular was anathema to the Americans, who, long before their policy was articulated by the phrase “manifest destiny,” decided that they, not the Indians, were the superior race and therefore deserved the riches that lay to the west.

To help pay for the troops, the Stamp Act was passed by the British Parliament on this day in history, March 22, 1765. The Stamp Act was the first internal tax levied directly on American colonists by the British government. The British Empire was deep in debt from the French and Indian War. Since the war benefited the American colonists as much as anyone else in the British Empire, the British government decided it was only fair for those colonists to shoulder part of the war’s cost.

Proof sheet of one-penny stamps submitted for approval to Commissioners of Stamps by engraver. 10 May 1765.

The British not only needed money to support the large force stationed in North America. In addition, as some historians have pointed out, demobilizing the army would have put 1,500 officers out of work, many of whom were well-connected in Parliament. This made it politically prudent to retain a large peacetime establishment, and preferably not at home. Or as John Adams complained later in a letter of June 17, 1768, Britain demands revenue from America, “appropriated to the maintenance of swarms of Officers and Pensioners in idleness and luxury, whose example has a tendency to corrupt our morals, and whose arbitrary dispositions will trample on our rights.”

The new tax was imposed on all American colonists and required them to pay a fee for every piece of printed paper they used. Ship’s papers, legal documents, licenses, newspapers, other publications, and even playing cards were taxed.

As the website of Colonial Williamsburg reports:

The actual cost of the Stamp Act was relatively small. What made the law so offensive to the colonists was not so much its immediate cost but the standard it seemed to set. In the past, taxes and duties on colonial trade had always been viewed as measures to regulate commerce, not to raise money. The Stamp Act, however, was viewed as a direct attempt by England to raise money in the colonies without the approval of the colonial legislatures. If this new tax were allowed to pass without resistance, the colonists reasoned, the door would be open for far more troublesome taxation in the future.”

In sum, the American colonists, who paid less taxes overall than did citizens in the British homeland, objected mightily to the uses to which the taxes were put and to the precedent it set. Furthermore they thought they had found adequate philosophical support for their position from Enlightenment ideas then roiling the West.

Tensions increased on both sides. After months of protest, and an appeal by Benjamin Franklin before the British House of Commons, Parliament voted to repeal the Stamp Act in March, 1766. However, on the same day, Parliament passed the Declaratory Acts, asserting that the British government had free and total legislative power over the colonies. A year later, in a series of measures introduced into the English Parliament by Chancellor of the Exchequer Charles Townshend, the Townshend Acts imposed duties on glass, lead, paints, paper and tea imported into the colonies.

Charles Townshend- Chancellor of the Exchequer in the period following the repeal of the Stamp Act

Provocations and skirmishes marked the next three years, and once again Parliament repealed most of the taxes except the tea tax (for reasons having more to do with the needs of the colonies in India than in America). Again, the tax was low, and in fact, it made tea cheaper than before in America. But American smugglers resented the action, which would undercut their own profits. John Hancock organized a boycott of tea from the British East India Company, and its sales fell precipitously, while Hancock got wealthy smuggling in tea from elsewhere.

A rebel group, the Sons of Liberty, also interpreted the Tea Act (i.e., selling them cheaper goods!) as a hostile act by Britain. Thus the American rebels decided they must take action. On December 16, 1773, the Sons of Liberty, dressed as Native Americans, boarded three ships carrying East India Company tea and dumped 342 chests of it into Boston Harbor.

W.D. Cooper. “Boston Tea Party.”, The History of North America. London: E. Newberry, 1789 engraving

Britain’s retaliatory punitive measures galvanized other colonies to come to the aid of Massachusetts, and the American Revolution was on its way.

March 20, 1924 – Virginia Passes “The Racial Integrity Act”

The Virginia General Assembly has always been a pioneer in passing laws that reflect a concern for “racial integrity.” The Racial Integrity Act of 1924 was designed to prevent interracial relationships.

The law required that a racial description of every person be recorded at birth and divided society into only two classifications: white and colored (essentially all other non-whites, which included numerous American Indians). Furthermore it defined race by the “one-drop rule“, defining as “colored” persons with any African or Native American ancestry. It also criminalized all marriages between white persons and non-white persons. The law was not overturned until 1967 by the landmark Supreme Court case Loving v. Virginia, 388 U.S. 1 (1967).

The prime mover behind the enactment of the law of 1924 was Virginia’s registrar of statistics, Dr. Walter Ashby Plecker, who allied with the newly founded Anglo-Saxon Clubs of America, a white supremacist political organization, to lobby for its passage. This club was founded in Virginia in the fall of 1922 to promote anti-miscegenation laws and to fight against immigration to the U.S. from countries outside Northern Europe. Membership was only open to white males; within a year the club had more than 400 members and 31 posts in the state.

You can read the full text of the Racial Integrity Act here, and the full text of Loving v. Virginia here.

February 7, 1795 – 11th Amendment to the U.S. Constitution Ratified in Aftermath of Supreme Court Decision of Chisholm v. Georgia

On February 7, 1795, the 11th Amendment to the United States Constitution took effect with ratification by North Carolina. Adopted in the aftermath of the US Supreme Court’s ruling in Chisholm v. Georgia, the amendment limited the jurisdiction of the federal courts to automatically hear cases brought against a state by the citizens of another state.

In 1777, the Executive Council of Georgia had authorized the purchase of supplies from a South Carolina businessman. The supplies were delivered to Georgia, but the state did not deliver payments as promised. After the merchant’s death, the executor of his estate, Alexander Chisholm, took the case to the Supreme Court in an attempt to collect from the state. Georgia maintained that it was a sovereign state not subject to the authority of the federal courts.

[Article II, Section 3 of the Constitution held – before the 11th Amendment – that the Supreme Court would have jurisdiction in cases arising from controversies between a state and citizens of another state.]

In Chisholm v. Georgia (2 U.S. 419, 1793), the Supreme Court, by a vote of four to one, rejected Georgia’s assertion of sovereign immunity as a defense against a suit in federal court for breach of contract brought against it by a citizen of another state. The majority held that supreme or sovereign power was retained by citizens themselves, not by the “artificial person” of the State of Georgia. State conduct was subject to judicial review.

Justice James Wilson, one of the Founding Fathers, wrote in his separate opinion:

A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, willfully refuses to discharge it: The latter is amenable to a court of justice: Upon general principles of right, shall the former when summoned to answer the fair demands of its creditor, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice, by declaring ‘I am a Sovereign State?’ Surely not.”

Justice James Wilson

Like Justice Wilson, Chief Justice John Jay, in his separate opinion, affirmed the “great and glorious principle, that the people are the sovereign of this country. . . . ” Furthermore, denying individuals the right to sue a state “would not correspond with the equal rights we claim; with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes.”

Alas, the states didn’t like that answer.

As Justice Felix Frankfurter later noted in a federal sovereign immunity case, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 708 (1949) (dissenting), “The vehement speed with which the Eleventh Amendment displaced the decision in Chisholm v. Georgia . . . proves how deeply rooted that doctrine was in the early days of the Republic.” [That is, the doctrine of “unquestioned acceptance of the sovereign’s freedom from ordinary legal responsibility,” or as Frankfurter also phrased it, “legal irresponsibility.”]

Justice Felix Frankfurter

The amendment was passed on March 4, 1794 by the House, and ratified on February 7, 1795, when the twelfth State acted, there then being fifteen States in the Union.

On January 8, 1798, approximately three years after the Eleventh Amendment’s adoption, President John Adams stated in a message to Congress that the Eleventh Amendment had been ratified by the necessary number of States and that it was now a part of the Constitution of the United States. New Jersey and Pennsylvania did not take action on the amendment; neither did Tennessee, which had become a State on June 16, 1796.

You can see an extensive discussion of the legislative and judicial history of the Amendment in a Cornell University Law School Annotation, here.

For an interesting interpretation of Chisholm and its individualist theory of popular sovereignty, see Randy E. Barnett, “The People or the State?: Chisholm v. Georgia and Popular Sovereignty” (93 Va. L. Rev. 1729-1758, 2007). (This paper can be downloaded free of charge here.) His conclusion is striking:

If nothing else, Chisholm teaches that the concept of sovereignty as residing in the body of the people, as individuals, was alive at the time of the founding and well enough to be adopted by two Justices of the Supreme Court, who were also influential Founders. Likewise, Chisholm shows that the bold assertion that states inherited the power of kings (subject only to express constitutional constraints) was rejected by four of five Justices when the issue first arose. By omitting Chisholm v. Georgia, the first great constitutional case, from the canon of constitutional law, we have turned our gaze away from perhaps the most fundamental question of constitutional theory and the radical way it was once answered by the Supreme Court. We law professors have hidden all this from our students; and by hiding it from our students, we have hidden it from ourselves.”